Stork v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

FRANK E STORK,

Plaintiff,

v. Case No. 3:20-CV-725 JD

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

A. Factual Background

In October 2017, Mr. Stork applied for supplemental security income, claiming that, by

August 2017, he had become unable to work due to his health conditions. (R. 194.) He primarily

alleged that he was disabled due to back issues, leg weakness, and headaches. (R. 215.) Some of

these health conditions allegedly stemmed from an auto accident, which also occurred in August

2017. (R. 40; R. 297.)

On June 17, 2019, after reviewing Mr. Stork’s medical records and listening to his

testimony, the ALJ found that he was not disabled. (R. 44.) The ALJ determined that Mr. Stork

suffered from the following severe impairments: degenerative disc disease; lumbar spondylosis

and radiculopathy; and degenerative arthritis. (R. 37.) However, the ALJ found that Mr. Stork’s

alleged hypertension, depression, and post-traumatic stress disorder were all non-severe. (R. 37–

38.) The ALJ then found that none of these impairments or combination of impairments was

equal in severity to the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 38.)

After reviewing the record and listening to Mr. Stork at the hearing, the ALJ concluded that Mr.

Stork had the residual functional capacity for light work as defined in 20 C.F.R § 416.967(b),

except for the following limitations: “the claimant is never able to climb ladders, ropes, or

scaffolds, but is able to occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and

stairs.” (R. 39.) Determining that Mr. Stork could perform past relevant work as an assembly

press operator, the ALJ found that Mr. Stork was not disabled. (R. 42–44.) Mr. Stork requested a

review by the Appeals Council, which was denied on June 26, 2020 (R. 1), thereby making the

ALJ’s decision the final decision of the Commissioner for purposes of judicial review. See 42

U.S.C. § 405(g).

B. Standard of Review

Because the Appeals Council denied review, the Court evaluates the ALJ’s decision as

the final word of the Commissioner of Social Security. Schomas v. Colvin, 732 F.3d 702, 707

(7th Cir. 2013). This Court will affirm the Commissioner’s findings of fact and denial of benefits

if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008).

Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). This

evidence must be “more than a scintilla but may be less than a preponderance.” Skinner v.

Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Even if “reasonable minds could differ” about the

disability status of the claimant, the Court must affirm the Commissioner’s decision as long as it

is adequately supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

The ALJ has the duty to weigh the evidence, resolve material conflicts, make

independent findings of fact, and dispose of the case accordingly. Perales, 402 U.S. at 399–400.

In evaluating the ALJ’s decision, the Court considers the entire administrative record but does

not reweigh evidence, resolve conflicts, decide questions of credibility, or substitute the Court’s

own judgment for that of the Commissioner. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539

(7th Cir. 2003). Nevertheless, the Court conducts a “critical review of the evidence” before

affirming the Commissioner’s decision. Id. An ALJ must evaluate both the evidence favoring the

claimant as well as the evidence favoring the claim’s rejection and may not ignore an entire line

of evidence that is contrary to his or her findings. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir.

2001). The ALJ also must provide a “logical bridge” between the evidence and the conclusions.

Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009).

C. Standard for Disability

Disability benefits are available only to those individuals who can establish disability

under the terms of the Social Security Act. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998).

Specifically, the claimant must be unable “to engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. § 423(d)(1)(A). The Social Security regulations create a five-step process to

determine whether the claimant qualifies as disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)–(v);

416.920(a)(4)(i)–(v). The steps are to be used in the following order:

1. Whether the claimant is currently engaged in substantial gainful activity;

2. Whether the claimant has a medically severe impairment;

3. Whether the claimant’s impairment meets or equals one listed in the regulations;

4. Whether the claimant can still perform past relevant work; and

5. Whether the claimant can perform other work in the community.

See Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).

At step two, an impairment is severe if it significantly limits a claimant’s ability to do

basic work activities. 20 C.F.R. §§ 404.1522(a), 416.922(a). At step three, a claimant is deemed

disabled if the ALJ determines that the claimant’s impairment or combination of impairments

meets or equals an impairment listed in the regulations. 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If not, the ALJ must then assess the claimant’s residual functional capacity,

which is defined as the most a person can do despite any physical and mental limitations that

may affect what can be done in a work setting. 20 C.F.R. §§ 404.1545, 416.945. The ALJ uses

the residual functional capacity to determine whether the claimant can perform his or her past

work under step four and whether the claimant can perform other work in society at step five. 20

C.F.R. §§404.1520(e), 416.920(e). A claimant qualifies as disabled if he or she cannot perform

such work. The claimant has the initial burden of proof at steps one through four, while the

burden shifts to the Commissioner at step five to show that there are a significant number of jobs

in the national economy that the claimant can perform. Young v. Barnhart, 362 F.3d 995, 1000

(7th Cir. 2004).

D. Discussion

Mr. Stork argues that the ALJ’s decision should be remanded because the ALJ failed to

provide a logical bridge for his conclusion that Mr. Stork did not meet or equal the criteria of

Listing 1.04(A), (B), or (C) at Step 3. (DE 1 at 3–6.) Mr. Stork also argues that he, in fact, met

each of those listing’s criteria. (DE 1 at 7–18.) At step three of the disability analysis, an ALJ

must determine whether the claimant’s impairment meets or equals a listed impairment. 20

C.F.R. § 404.1520(d). The claimant “has the burden of showing that his impairments meet a

listing, and he must show that his impairments satisfy all of the various criteria specified in the

listing.” Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006). If a claimant meets or equals a

listed impairment, he or she is presumptively disabled and does not need to make any further

showing. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004). Generally, when “considering

whether a claimant's condition meets or equals a listed impairment, an ALJ must discuss the

listing by name and offer more than perfunctory analysis of the listing.” Id.

At Step 3, the ALJ concluded that the “claimant does not have an impairment or

combination of impairments that meet or medically equals the severity of one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1 . . . .” (R. 38.) In coming to this

conclusion, the ALJ’s analysis was quite brief, writing that:

A thorough review of the objective evidence, as well as the Listing of Impairments,

leads the undersigned to conclude that the aforementioned “severe” impairments

are not severe enough to meet or medically equal one of the impairments listed in

Appendix 1, Subpart P. In addition, no examining or non-examining physician has

noted that the claimant’s impairments equal any of the listed impairments.

(R. 39) Typically, an ALJ must discuss a listing by name at Step 3. Barnett, 381 F.3d at 668 (“In

considering whether a claimant's condition meets or equals a listed impairment, an ALJ must

discuss the listing by name . . . .”); see also S.S.R. 17-2P (explaining that an ALJ “must provide

a rationale for a finding of medical equivalence [to a listing]” and that this generally “will entail

the adjudicator identifying the specific listing section involved . . .”). The Seventh Circuit has

clarified that Barnett “[d]oes not require ALJs to name and discuss every Listing in their written

decisions” and that “[s]uch a requirement would be particularly unreasonable where . . . the

claimant does not identify a Listing at the hearing. . . .” Wilder v. Kijakazi, 22 F.4th 644, 652

(7th Cir. 2022) (emphasis added). However, unlike Wilder, Mr. Stork’s prior counsel specifically

referred to Listing 1.04 at the hearing, saying “we do believe that listing 1.04 should be

considered” before proceeding to argue that specific portions of the record met each component

of Listing 1.04(A). (R. 58.) At the hearing, Mr. Stork also asked the ALJ to consider Listing

1.04(C). (R. 91.) Furthermore, given that the ALJ found that Mr. Stork had three severe “spinal

impairments” (degenerative disc disease, lumbar spondylosis with radiculopathy, and

degenerative arthritis) (R. 40), Listing 1.04 was clearly the pertinent listing, since that is the

Listing for “[d]isorders of the spine.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 1.04 (2019).

The Commissioner admits that the “ALJ did not specifically cite Listing 1.04” but argues

that the ALJ’s later analysis, concerning Mr. Stork’s RFC, provided a sufficient explanation for

why Mr. Stork’s impairments were not disabling under Listing 1.04. (DE 24 at 8.) The

Commissioner points to a recent Seventh Circuit case: Zellweger v. Saul, 984 F.3d 1251 (7th Cir.

2021). In Zellweger, the Seventh Circuit noted that “when an ALJ explains how the evidence

reveals a claimant’s functional capacity, that discussion may doubly explain how the evidence

shows the claimant’s impairment is not presumptively disabling under the pertinent listing.” Id.

at 1255 (quoting Jeske v. Saul, 955 F.3d 583 (7th Cir. 2020)). Notably, the Seventh Circuit has

found that subsequent analysis can provide a logical bridge for a conclusion at Step 3 even where

the ALJ fails to specifically refer to the Listing. See Adkins v. Astrue, 226 F. App’x 600, 606 (7th

Cir. 2007) (finding that the ALJ provided an adequate explanation at Step 3, where the ALJ

considered the “issues relevant to [the Listing]” and provided more than a perfunctory analysis of

those issues, even though the ALJ never referred to the pertinent listing).

Similar to those cases, the ALJ’s later analysis when formulating the RFC provides a

sufficient explanation for why the ALJ determined that Mr. Stork did not meet Listing 1.04. The

Court wishes to emphasize at the outset that it would have been helpful for the ALJ to identify

the listing by name and its criteria. See Adkins, 226 F. App’x at 605 (explaining that, where the

ALJ failed to “refer to the Listing,” the court was “somewhat at a loss to be able to ascertain how

meaningfully he considered it . . . ”). However, it is a failure to “mention [a] specific listing . . .

combined with a perfunctory analysis” that requires remand. Ribaudo v. Barnhart, 458 F.3d 580,

583 (7th Cir. 2006). As discussed more in depth below, ALJ analyzed the relevant issues to that

listing in more than perfunctory detail.

(a) Listing 1.04(A)

At the time of the ALJ’s decision, to meet Listing 1.04(A), the claimant had to show: a

disorder of the spine “resulting in compromise of a nerve root (including the cauda equina) or the

spinal cord,” along with:

Evidence of nerve root compression characterized by neuro-anatomic distribution

of pain, limitation of motion of the spine, motor loss (atrophy with associated

muscle weakness or muscle weakness) accompanied by sensory or reflex loss and,

if there is involvement of the lower back, positive straight-leg raising test (sitting

and supine).

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04 (2019) (emphasis added).

The ALJ’s opinion sufficiently explains why Mr. Stork’s impairments failed to meet or

equal Listing 1.04(A). When formulating the RFC, the ALJ first considered the medical records

immediately after Mr. Storks 2017 motor vehicle accident. The ALJ noted that these medical

records failed “to indicate fracture or even minimal outward injury” and also failed to indicate

“[t]he most minimal of focal or neurological deficits (such as loss of motor strength, sensory,

ambulatory ability, or manipulative ability).” (R. 40.) Instead, the records showed that Mr. Stork

had a “normal gait and motor strength (5/5), with no sign of trauma to the extremities and,

despite complaints of headache, the claimant declined cranial imaging . . . .” (R. 40.) The ALJ

also noted that in the years following Mr. Stork’s motor vehicle accident, multiple examining

physicians indicated that Mr. Stork did not show “any red flag symptoms,” that he had a “very

benign appearing [L/S [lumbo-sacral] spine.” (R. 40; R. 414; R. 703.)

Mr. Stork argues in his opening brief that “the ALJ apparently ignored Mr. Stork’s May

1, 2018, MRI and his Electromyography (EMG) dated September 13, 2018 . . . showing mild to

moderate mass effect on three nerve roots.” (DE 1 at 7.) However, the ALJ explicitly considered

both these tests, but found that diagnosis of lumbar radiculopathy and “mild” degenerative

changes, “without more significant objective symptomology (such as focal or neurological

deficit) fails to support greater limitations than assessed herein.” (R. 41.) The ALJ also noted that

Mr. Stork underwent an “objective functional capacity evaluation (FCE),” but that the record

indicated he did “not give maximal effort on several [of the FCE] tests.” (R. 41; R. 466.) The

ALJ concluded that greater limitations than those assessed were not warranted because Mr.

Stork’s “self-perceived abilities [were] less than those [objectively] displayed” and that he

“lack[ed] [a] focal or neurological deficit documented [with] objective findings.” (R. 41.)

This “lack of focal or neurological deficit” also explains why Mr. Stork’s impairment did

not meet Listing 1.04(A). Under Listing 1.04(A), Mr. Stork had to show, among other things,

that he had nerve root compression characterized by “motor loss (atrophy with associated muscle

weakness or muscle weakness) accompanied by sensory or reflex loss.” 20 C.F.R. Pt. 404, Subpt.

P, App. 1, § 1.04 (2019). However, by finding that there was no objective evidence of a “focal or

neurologic deficit,” the ALJ was also finding that Mr. Stork failed to demonstrate the required

motor and sensory loss. This is because a “focal neurologic deficit consists of a set of symptoms

or signs in which causation can be localized to an anatomic site in the central nervous system.”

F.J. Wippold, Focal Neurologic Deficit, 29 American Journal of Neuroradiology 1998 (2008).

Some of these symptoms can include “movement changes,” such as “weakness” and “loss of

muscle tone,” and also “sensation changes,” such as “decreases in sensation.” U.S. National

Library of Medicine, Focal Neurologic Deficits, MEDLINE PLUS, https://medlineplus.gov/ency/

article/003191.htm. As detailed above, the ALJ explained that there were no objective findings

of focal neurologic deficits (such as loss of motor strength, sensory, ambulatory ability, or

manipulative ability), referring to multiple reports indicating that that Mr. Stork had “full motor

strength” and also reports that he did not give maximum effort on tests and was self-limiting. (R.

40–41; R. 435; R. 703.)

The ALJ also considered the opinion evidence of state medical consultants. At Step 3, in

support of his finding that no listing was met, the ALJ wrote that no “examining or non-

examining physician . . . noted that the claimant’s impairments equal any of the listed

impairments.” (R. 39.) Both Dr. Ruiz and Dr. Eskonen examined whether Mr. Stork met Listing

1.04, but concluded that Mr. Stork was not disabled. (R. 100; R. 103; R. 111; R. 115.) Later,

when formulating the RFC, the ALJ noted that Dr. Ruiz’s and Dr. Eskonen’s opinions were

consistent with claimant’s minimal report of injury after his accident, “his lack of greater

abnormality upon diagnostic imaging, his lack of invasive surgical correction, and his lack of

objective focal or neurological deficit . . . .” (R. 42 (emphasis added).) As detailed above, the

lack of focal or neurological deficit explains why Listing 1.04(A) was not met. Therefore, the

medical opinion evidence analyzed by the ALJ similarly supports his conclusion that the listing

was not met.

Accordingly, the Court finds that the ALJ’s analysis when formulating the RFC, in

addition to the ALJ’s reliance on the examining physician’s opinions, provides a sufficient

logical bridge to the conclusion that Mr. Stork’s impairments did not meet or equal Listing

1.04(A).

(b) Listing 1.04(B)

Mr. Stork also argues that the ALJ failed to adequately explain why his impairments did

not meet 1.04(B). First, the only listings which Mr. Stork and his Counsel identified at his

hearing were Listing 1.04(A) and Listing 1.04(C). The Seventh Circuit has made clear that an

ALJ does not need to “name and discuss every Listing in their written decisions” and that “[s]uch

a requirement would be particularly unreasonable where . . . the claimant does not identify a

Listing at the hearing.” Wilder, 22 F.4th at 652 (emphasis added). Listing 1.04(B) was never

identified at the hearing, and the ALJ was not under an obligation to “scour the Listings for a

possible match, no matter how unlikely.” Id. at 653.

Even if Listing 1.04(B) had been identified at the hearing, failure to consider it

constituted harmless error. Harmless error occurs when “it is predictable with great confidence

that the agency will reinstate its decision on remand because the decision is overwhelmingly

supported by the record though the agency’s original opinion failed to marshal that support . . . .”

Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010). To meet Listing 1.04(B), Mr. Stork had to

show a disorder of the spine “resulting in compromise of a nerve root (including the cauda

equina) or the spinal cord,” along with:

Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue

biopsy, or by appropriate medically acceptable imaging, manifested by severe

burning or painful dysesthesia, resulting in the need for changes in position or

posture more than once every 2 hours.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04 (2019). Mr. Stork argues that his MRI on May 1,

2018 (R. 645) and his EMG from September 13, 2018 (R. 611), provided the required “medically

acceptable imaging.” (DE 1 at 9.) However, neither of these tests confirmed that Mr. Stork had

spinal arachnoiditis. The MRI indicated that Mr. Stork had “mild multilevel degenerative

changes” (R. 645), while the EMG indicated that he had “left L5 motor radiculopathy” (R. 611).

Nowhere do these test results confirm spinal arachnoiditis, as required by Listing 1.04(B). See

Padilla v. Colvin, No. 2:12-CV-202-JEM, 2014 WL 899188, at *10 (N.D. Ind. Mar. 7, 2014)

(finding that an MRI revealing clumping nerve roots which “may be secondary to arachnoiditis”

was not sufficient to meet the listing, since it did not “confirm the diagnosis”); see also Chopka

v. Saul, No. 5:18CV945, 2019 WL 4039124, at *5 (N.D. Ohio Aug. 27, 2019) (noting that

Listing 1.04B requires a “diagnosis of spinal arachnoiditis, not simply evidence thereof”).

Mr. Stork also states that “the medical records show that [he] did have painful

dysesthesia,” but fails to direct the Court to any portion of the record supporting that conclusory

statement, and also fails to direct the Court to any records supporting that he needs to change his

position or posture more than once every 2 hours. (DE 1 at 9.) There are some portions of Mr.

Stork’s testimony where he opined that he could only “sit [for] probably like 30 minutes” and

could only stand for “10 minutes,” which seem to support him needing to change his position or

posture more than once every two hours. (R. 72.) However, the ALJ explained that documents,

particularly those concerning his performance on his functional capacity evaluation, showed that

Mr. Stork had a “perception of his abilities that is less than those he was actually able to

conduct.” (R. 41; R. 466) Because the record does not include evidence showing that Mr. Stork

had spinal arachnoiditis manifested by severe burning dysesthesia, and because the record

supports that Mr. Stork was capable of greater physical ability than alleged, the Court has great

confidence that, on remand, the Commissioner would find that Listing 1.04(B) had not been met.

Accordingly, even if the ALJ’s explanation had been deficient, it would amount to harmless error

and remand would not be warranted.

(c) Listing 1.04(C)

Lastly, Mr. Stork argues that the ALJ failed to adequately explain why his impairments

did not meet Listing 1.04(C). To meet Listing 1.04(C), Mr. Stork had to show a disorder of the

spine “resulting in compromise of a nerve root (including the cauda equina) or the spinal cord,”

along with:

Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on

appropriate medically acceptable imaging, manifested by chronic nonradicular pain

and weakness, and resulting in inability to ambulate effectively, as defined in

1.00B2b.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04 (2019) (emphasis added). An “inability to ambulate

effectively means an extreme limitation of the ability to walk.” 20 C.F.R. Pt. 404, Subpt. P,

App. 1, § 1.00 B(2)(b) (2019). “To ambulate effectively, individuals must be capable of

sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities

of daily living.” Id. The ALJ noted multiple times different tests which found that Mr. Stork

had “full motor strength” (R. 297; R. 433; R. 703.) These tests also indicated that Mr. Stork

was ambulating without any devices and had intact movements. (R. 433; R. 703.) The ALJ then

described how one physician, Doctor Zaidi, documented that Mr. Stork was without “any red

flag symptoms” and ultimately dismissed Mr. Stork from her care after she told him he was not

disabled, he became upset, and then refused to comply with her recommendations. (R. 41; R.

414) Again, the Court believes that this analysis, indicating that Mr. Stork could ambulate

effectively, in addition to the ALJ’s consideration at Step 3 of Dr. Ruiz’s and Dr. Eskonen’s

opinions, sufficiently explains why Listing 1.04(C) was not met.

Even if the ALJ had failed to sufficiently explain why Listing 1.04(C) was not met, this

would amount to harmless error. To meet Listing 1.04(C), an individual must show that they

have “chronic nonradicular pain.” Mr. Stork, in his opening brief, makes no attempt to argue that

he had chronic nonradicular pain, but instead asserts that he has “chronic radicular pain.” (DE 1

at 13.) The regulations explain that nonradicular pain “is distinctly different from the radicular

type of pain seen with a herniated intervertebral disc” and “is often of a dull, aching quality.” 20

C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(K)(3). Mr. Stork does not point to any evidence in his

brief supporting a finding of chronic nonradicular pain, nor does the Court see any in the record.

Furthermore, physicians indicated he could ambulate effectively, as noted above, and Mr. Stork

also showed up to his hearing with only one cane, which he had been using for only three weeks.

Examples of ambulating ineffectively, under the regulations, include “inability to walk without

the use of . . . two canes.” Id. § 1.00 B(2)(b) (2019). Accordingly, the Court finds that, even had

the ALJ failed to adequately explain his reasoning as to why Listing 1.04(C) had not been met, it

would constitute harmless error.

E. Conclusion

For those reasons, the Court AFFIRMS the Commissioner’s decision. The Clerk is

DIRECTED to prepare a judgment for the Court’s approval.

SO ORDERED.

ENTERED: April 5, 2022

/s/ JON E. DEGUILIO

Chief Judge

United States District Court